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Percorsi costituzionali
Percorsi costituzionali
2/3.2011 Alla
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2/3.2011 Alla ricerca del buongoverno
del buongoverno

2/3.2011 Alla ricerca del buongoverno


Percorsi costituzionali

Copertina di Ettore Festa, HaunagDesign. Nell’illustrazione un’immagine dal film “En attendant”, Richard Negre, 2008
Tommaso Edoardo Frosini Elena Ferioli Giacomo Di Federico
Il buongoverno La “funzione di governo” Responsabilità civile
è un mito? nelle revisioni dei magistrati e diritto
costituzionali degli dell’Unione europea
Angelo Panebianco ordinamenti europei
Partiti forti, esecutivi Leonardo Pierdominici
stabili Michele Belletti Private prison on trial: la
Razionalizzazione degli Corte Suprema d’Israele
Antonio Ruggeri esecutivi regionali prosegue la “rivoluzione”?
L’art. 94 della Costituzione e “armonia” Fondazione Magna Carta
vivente: con la Costituzione Sara Pennicino

Čarna Pištan
«Il governo deve avere Eccellenza e promozione
la fiducia dei mercati» delle classi svantaggiate
I conflitti tra Presidente nel sistema universitario
Mario Esposito e Primo ministro nelle indiano
La metamorfosi forme di governo
costituzionale dell’Est Europa Luigi Melica
nella formazione Il Principato di Salerno
del governo Monti Marina Calamo Specchia tra referendum
L’Esecutivo e Corte costituzionale
Ida Nicotra della V Repubblica
Il principio di leale e la doppia anima Justin Frosini
collaborazione del semipresidenzialismo A constitutional paradox?
istituzionale nella Ghana’s peaceful
Presidenza Napolitano Valeria Piergigli democratic transition
L’Esecutivo federale belga:
Elena Orlandi crisi di una istituzione Guido Guidi
Moral suasion o crisi dello Stato? Carenza di fattori
del Presidente identitari nazionali
della Repubblica Mario Perini
e funzione legislativa Evoluzioni o rivoluzioni
dell’Esecutivo
Giuseppe de Vergottini nel Regno Unito?
Sicurezza internazionale:
un correttivo Antonio Torres de Morales
presidenziale El gobierno en la
Constitución española

Euro 38.00

  #!$ ($    # )$!
ISBN 978-88-13-31448-4 00130941
JUSTIN FROSINI

A CONSTITUTIONAL PARADOX?
GHANA’S PEACEFUL DEMOCRATIC TRANSITION

SUMMARY: 1. Premise: A Beacon of Democracy in Africa? – 2. His-


torical Background. – 3 The Constitution of 1992. – 4. The Con-
stitution in Action. – 4.1. The 1992 Presidential and Parliamen-
tary Elections. – 4.2. The 2000 Presidential and Parliamentary
Elections. – 4.3. The 2008 Presidential and Parliamentary Elec-
tions. – 5. The Reasons for this Peaceful Transition. – 5.1. The
Constitutional Factors. – 5.2. The Non-Constitutional Factors. –
6. A Look to the Future: Two Decades Later Time to Amend the
Constitution?

1. Premise: A Beacon of Democracy in Africa?

«The beacon of democracy in Africa», «the shining star of


democracy on the African continent» these are just two of the
many expressions used to refer to Ghana its history of free and
fair elections over the past twenty years, resulting in the peace-
ful transfer of power between parties both in 2000 and in
2008.∗1 As we shall see below, only once have the election re-


I am deeply grateful to H.E. Tullio Guma, Ambassador of Italy to Ghana: with-
out his intervention it would not have been possible to set up a series of meet-
ings with some of Ghana’s most important institutions and research centres dur-
ing a field trip to Accra that took place in September 2011.
This article is based on research for a much larger project on Constitutional De-
sign and Conflict Management in Africa and, in particular, makes reference to
the constitutional aspects of a paper presented at the University of Texas at Aus-
tin in November 2011, see J.O. Frosini, Constitutional Design and Conflict
Management in Ghana. The Dog that Doesn’t Bite, but Sometimes Barks…,
«Constitutional Design and Conflict Management in Africa», Austin, Texas, 15th
November 2011, http://ccaps.strausscenter.org/research/constitutional-design-
and-conflict-management.
368 JUSTIN FROSINI

sults been rejected, when, in 1992, the opposition parties re-


fused to accept that the incumbent Rawlings had won the presi-
dential vote and as a result refused to participate in the parlia-
mentary elections.
Ghana remains one of the few countries in Africa that has
been able to successfully transfer from military authoritarian
rule to democratic rule and has been able to carry out numerous
multiparty elections without reverting to widespread violence or
governmental takeovers.
Prior to the 2008 elections, there was some concern within
the country and throughout the international community as to
whether Ghana would be able to continue its run of successful
elections, given the shaky record of the region and the increased
incentive to gain power following the discovery of oil reserves
off the Western coast of Ghana which are expected to yield sig-
nificant revenue over the coming years and the preoccupation
still exists today i.e. less than a year from the presidential elec-
tions which will be held in November of this year.
From a certain perspective (and hence the title of this arti-
cle) Ghana might be considered a “constitutional paradox”
given that, as we shall see below, the 1992 Constitution intro-
duced a form of government characterised by hyper-
presidentialism and a form of state that consists of a strong ter-
ritorial centralisation.
Extrapolated from a case study on Ghana for a much larger
research project on Constitutional Design and Conflict Man-
agement in Africa,2 this article will first provide a short history
of Ghana since 1957 (i.e. when the Gold Coast became the first
country in Africa to obtain independence) then going on to out-
line the main features of the 1992 Constitution. The article will
proceed by addressing the three most important «constitutional
moments» of the last two decades i.e. the presidential and par-
liamentary elections of 1992, 2000 and 2008. The final part of
this contribution will be devoted to highlighting the constitu-
tional and non-constitutional factors that have contributed to the
success of Ghana’s democratic transition and underlining what

1
L. Whitfield, Change for a Better Ghana: Party Competition, Institutionalization,
and Alternation in Ghana’s 2008 Elections, in «African Affairs», 108, pp. 621-
625.
2
See J.O. Frosini, op. cit., http://ccaps.strausscenter.org/research/constitutional-
design-and-conflict-management.
A CONSTITUTIONAL PARADOX? 369

parts of the Constitution ought to be amended in the light of the


work of Ghana’s Constitution Review Commission.

2. Historical Background

Upon declaring independence in 1957, Ghana enacted the


so-called Monarchical Constitution, which basically followed
the British model combining constitutional monarchy and par-
liamentary democracy.3 The Monarchical Constitution was
amended several times in the following years, including the
Constitutional Repeal of Restrictions Act 1958, which changed
amendment procedures, and the Constitutional Amendment Act
1959, which dissolved the Regional Assemblies.
In 1960, under a new constitution, Ghana became a sover-
eign unitary Republic and a presidential form of government
was introduced.
The President was allowed to act in his own discretion,
without advice from any other person (Art. 8), and was there-
fore not subject to the Ministers. He was more similar to the
President of the United States, since he was responsible to the
people rather than the parliament. However, unlike the United
States, there was no developed system of checks and balances
or separation of the executive and legislature branches. The
President could also dissolve the National Assembly (but then
had to submit himself for re-election or retire thereafter), but he
could not be unseated by the legislature. The President was also
given the right to an absolute veto.
Ministers were also members of the legislative body; which
was another distinction from the US prototype. They assisted
the President in exercising executive power and the Cabinet was
not collectively responsible to the parliament.
Generally speaking, the constitution attempted to allow for
the intermingling of English common law and autochthonous
customary law. Despite its superficial division of powers,
Trevor Jones characterises the constitution as «a painted back-

3
For a detailed description of specific changes made, including the role of the Su-
preme Court, and the relationship between the cabinet and the parliament see E.
Schwelb, The Republican Constitution of Ghana in «The American Journal of
Comparative Law», 1960 and F. Bennion, The Constitutional Law of Ghana, But-
terworths, 1962.
370 JUSTIN FROSINI

drop against which the political game was played with only an
occasional nod in its direction»4.
In February 1966, while President Nkrumah (the founding
father of Ghana) was on a state visit to North Vietnam and
China, his government was overthrown in a military coup led
by Emmanuel Kwasi Kotoka and the National Liberation Coun-
cil (NLC).
As John Kraus points out: the CPP5, parliament, constitu-
tion, and all auxiliary party organizations were dissolved… In
order to reduce any remaining supporting attitudes, expose the
old regime, in particular break “the myth surrounding
Nkrumah,” prepare for legal prosecution of CPP leaders, pri-
marily for corruption, and, thereby, firmly legitimize its seizure
of power, the NLC immediately authorized a large number of
judicial commissions of enquiry into the old regime.6
The second major phase was rule by the military, but it was
not rule by the military alone. The soldiers surrounded them-
selves with civil servants as well as corps of intellectual who
had earned the respect of those officers who looked up to them
and sought guidance and ideas.
The third phase, the return to parliamentary government,
was designed to prevent cabinet dictatorship. Fulfilling the re-
quirements of British practice as previously established in
Ghana, the pattern was revived, but without a very effective
party system.7
In 1967 Brigadier General Afrifa8 declared: «We want to
build a new Ghana […] We will stand against anything un-
democratic. I believe that men are born free. Democracy based
on the freedom of the individual is more acceptable than any
form of totalitarianism. We are against fascism and communism
[…] I am a great admirer of the British way of life, its legal sys-
tem, the Magna Carta, the Petition of Rights and the Bill of
Rights. These are institutions on which the civil liberties of the

4
T. Jones, Ghana’s First Republic 1960-1966., Methuen & Co Ltd, London,
1976, p. 28.
5
i.e. The Convention People’s Party, see http://conventionpeoplesparty.org.
6
J. Kraus, Arms and Politics in Ghana in C.E. Wech, (ed.) Soldier and State in
Africa, Northwestern Press, Evanston, 1970, p. 189.
7
D.E Apter, Ghana in Transition, Princeton University Press, New Jersey: 1972,
p. 370.
8
Head of state of Ghana and leader of the military government in 1969 and then
Chairman of the Presidential Commission between 1969 and 1970.
A CONSTITUTIONAL PARADOX? 371

people are founded. The British Constitution safeguards not


only the rule of law but also the freedom of the press, of
thought, of action within the law, and of the individual. It is
these things that make Britain the home of democracy».9
It is left for debate whether over the following twelve years
this aim was accomplished, but in any case in 1979 Flt. Lt. Jerry
John Rawlings took control of Ghana for a brief period, after
which Hilla Limann was elected President representing the
People’s National Party, only to be deposed in another coup
staged by Rawlings on 31st December, 1981 who then went on
to govern Ghana under military rule until the Democratic Con-
stitution was approved in 1992.10

3. The Constitution of 1992

Following the serious economic crisis that afflicted Ghana


in the 1980s11, in 1991 Rawlings announced that «our eyes are
now firmly set on the final phase of our journey as a provisional
government and on the road towards establishing for Ghana a
new constitutional order».12 Indeed, both strong internal and ex-
ternal pressures led to the movement away from Jerry
Rawlings’ no-party electoral regime towards a multiparty de-
mocracy and on 10th May 1991 the Government released a
White Paper that provided for the establishment of a Committee
of Experts to draft constitutional proposals, using the National
Commission on Democracy (NCD) report and 1957, 1960,
1969, and 1979 constitutions as guidelines and source docu-
ments.13
The Constitutional Commission,14 a constitution-making

9
D.E Apter, op. cit., p. 390.
10
On the reasons that led Rawlings to accept a democratic constitution, see J.
Wiseman, The New Struggle for Democracy in Africa, Avebury, Aldershot, 1996.
11
See J.O. Frosini, op. cit., http://ccaps.strausscenter.org/research/constitutional-
design-and-conflict-management.
12
E. Gyimah-Boadi, Notes on Ghana’s Current Transition to Constitutional Rule,
in «Africa Today», 38.4, 5, 1991, p. 5.
13
E. Gyimah-Boadi, op. cit., pp. 5-6.
14
According to Michael Bratton and Nicolas van de Walle «Jerry Rawlings
packed the constitutional commission with his own supporters, stretched out the
constitutional drafting deadline, and inserted clauses into the final document favor-
able to his Peoples National Defense Council» see M. Bratton, N. van de Walle,
372 JUSTIN FROSINI

body, took over a year to deliberate about the constitutional de-


sign to be created by the 1992 constitution eventually seeking to
create a hybrid parliamentarian/presidential system in order to
try to prevent some of the failures which Ghana had experi-
enced in its past attempts at democratic rule.15 As we shall see,
however, the form of government developed into a fully-
fledged presidential system.
The Constitution was put forth via referendum to the Gha-
naian people on April 28, 1992 and was accepted with over-
whelming endorsement from Rawlings party and opposition
groups within Ghana: 92% of the population voted in favour.16

4. The 1992 Constitution in Action

4.1. The 1992 Presidential and Parliamentary Elections

Following the approval of the new democratic constitution


Rawlings ran as the presidential candidate for the National De-
mocratic Congress (NDC)-National Convention Party (NCP)
alliance as well as the Egle Party while his main opponent was
the New Patriotic Party (NPP) candidate, Prof. Adu Boahen.17
Ghana’s transition to democracy was no easy feat, indeed
the first elections under the new constitution were characterised
by the fact that the opposition parties rejected the results of the
1992 presidential elections.
They did this on three main grounds.
First of all, the democratisation process and electoral time-
table was dictated by Rawlings’ party, the PNDC (Provisional
National Defence Council); secondly the electoral playing field
tilted towards Rawlings as he succeeded in campaigning before
he and the others were officially able to announce their candi-
dacy and also because he was able to use official resources to
assist his party’s campaign; third although the ban on party

Democratic Experiments in Africa - Regime Transitions in Comparative Perspec-


tive, Cambridge University Press, Cambridge 1997, p. 113.
15
S. Lindberg, Y. Zhou, Co-optation Despite Democratization in Ghana, in J.
Barkan (ed.), Legislative Power in Emerging African Democracies, Lynne
Rienner Publishers, Boulder-London, 2009, 147-175.
16
R. Jeffries, C. Thomas, op. cit., p. 337.
17
See R. Jeffries, C. Thomas, The Ghanaian Elections of 1992, in «African Af-
fairs» 92, 1993, pp. 334-335.
A CONSTITUTIONAL PARADOX? 373

politics was lifted on 1st May 1992 the opposition parties had to
wait two months before they could register, which left them
with only three months to campaign before the presidential
election.18
With the complicity or at least negligence of the Interim
National Electoral Commission (INEC), there was massive rig-
ging of election-day balloting and vote-counting, but despite
these accusations, the 1992 elections were found to be «free and
fair» by the majority of election observers and the international
community.19
The official results were thus announced and it emerged
clearly that Rawlings had won the election with 58.3% of the
vote, therefore negating the need for a runoff election20 as he
had obtained more than 50% of the vote. It is interesting to un-
derline that Rawlings gained 93.3% of the vote in the Volta Re-
gion.
Adu Boahen, the next closest candidate, received 30.4% of
the vote, however, soon after the results were announced, the
opposition parties called for them to be held off until complaints
of irregularities were investigated.21
There can be no doubt that the Presidential elections were a
shock to the country. In fact, demonstrations and riots occurred
and three bombs exploded in Accra, however, without in any
way ignoring these serious occurrences, it should be underlined
that widespread violence did not break out.
On 13th November 1992 the opposition parties announced
that they were withdrawing from the parliamentary elections22
unless they were supervised by a «genuinely independent elec-
toral commission employing a new voters’ register and voters’
identity cards».
Despite the boycott by the opposition parties the elections
were held on 29th December and were contested by the three
pro-Rawlings parties: the NDC won 189 seats out of 200, the
NCP won 8 seats, and the Egle party won 1, with 2 independ-

18
R. Jeffries, C. Thomas, op. cit., p. 339.
19
R. Jeffries, C. Thomas, op. cit., p. 338.
20
To be elected President one needs to obtain an absolute majority of the vote.
21
R. Jeffries, C. Thomas, op. cit., pp. 354-356.
22
It is very important to note that in 1992, unlike the subsequent elections of 1996,
2000, 2004 and 2008, the presidential and parliamentary elections were not held
on the same day.
374 JUSTIN FROSINI

ents also winning a seat each. Turnout was extremely low at


29%.23
It has been estimated that if the opposition parties were to
have contested the parliamentary elections, then, based on their
performance in the presidential election, they would have won
around 70 seats and would have therefore played a significant
role in the government instead of being on the outside.24
One might affirm the fact that while the elections were
probably not «free and fair» (despite the statements made by the
international community) they were certainly not just «show»
(or sham) elections.
Alea iacta est: Ghana had started out on the long path to-
wards democracy. The new constitutional design, though with
some failings and under the strong influence of Rawlings, had
fundamentally played its mediating role. Rawlings was still in
power, but at least now he was democratically elected and in-
deed eight years later a shock, that will prove extremely posi-
tive for Ghana’s transition to democracy, then took place.

4.2. The 2000 Presidential and Parliamentary Elections

The presidential and parliamentary elections of 2000 were


of particular importance to establishing the legitimacy of the
Ghanaian constitution and represented a further step towards
democratic consolidation through the peaceful alternation of
power from Rawlings, who had served out his two terms in of-
fice, as provided for by the 1992 constitution.25
Indeed, the shock occurred when runoff elections were re-
quired due to the fact that neither John Agyekum Kufour of
NPP nor John Evans Atta Mills of NDC won more than 50% of
the vote. In the first round, Kufour won 48% of the vote and
Mills won 45%. Kufour was able to carry this lead into the sec-
ond round of elections when he earned 56.9% of the vote.

23
R. Jeffries, C. Thomas, op. cit., p. 363.
24
R. Jeffries, C. Thomas, op. cit., p. 364.
25
The fact that Rawlings did not attempt to amend the Constitution in order to al-
low him to run for a third term is in itself significant especially if one makes a
comparison with democratic transitions elsewhere: for example, re-election has
been defined as an «obsession» for many leaders in Latin America see J.O. Frosini,
L. Pegoraro, Constitutional Courts in Latin America: A Testing Ground for New
Parameters of Classification?, in «Journal of Comparative Law», 3, 2, 2008, p. 61.
A CONSTITUTIONAL PARADOX? 375

The 2000 elections were also important because Ghana ex-


perienced a shift in power away from the heretofore dominant
political party, the NDC, and saw the election of an NPP candi-
date for President and significant gains in the parliament. In
fact, in the parliamentary elections, NPP was able to win 100 of
the parliament’s 200 seats, while NDC’s numbers decreased
from 133 in the previous parliament to 92. The rest of the seats
were filled by independents and smaller party candidates who
had backed Kufour during the presidential runoff.26
What was the 2000 electoral outcome? Well first of all
Rawlings’ term-limited exit with no attempt on his part to tam-
per with the Constitution and subsequently the defeat of his
party and his handpicked successor at the polls. Indeed, after
being in power continuously since 1982, first in military form
and then in civilian form, Rawlings had campaigned on «conti-
nuity», the opposition on change, and Rawlings, using his
stronghold in the military command, had warned Ghanaian vot-
ers not to compromise the peace the country had enjoyed by
changing the guard, however, the Ghanaians did not buy the
«après moi le deluge» threat thus opening the way to an alterna-
tion in power (so important in the success of democratic transi-
tions).

4.3. The 2008 Presidential and Parliamentary Elections

Similar to the elections of 2000, the presidential and par-


liamentary elections in 2008 marked another successful turn-
over of power from the incumbent party to the opposition party,
as John Kufour of the NPP handed his office over to John Ev-
ans Atta Mills, the leader of the NDC.
These elections were closely contested in the first round,
with no candidate winning more than 50% of the vote. The in-
cumbent NPP party’s candidate, Nana Akufo-Addo, led the first
round of voting with 49.1% while the NDC candidate, John Ev-
ans Atta Mills, received 47.9%. In the run-off election, how-
ever, Mills and the NDC turned this result around and in a very
close second round, received 50.23% of the vote to Akufo-
Addo’s 49.77%. These were Ghana’s closest elections to date.

26
E. Gyimah-Boadi, A Peaceful Turnover in Ghana, in «Journal of Democracy»,
12.2, 2001, pp. 103-104.
376 JUSTIN FROSINI

The parliamentary elections indicated a similar closeness,


with neither of the two major parties winning a clear parliamen-
tary majority of 116 seats. The NDC took 114 of the 230 seats
and NPP won 107 seats, while the rest were divided among in-
dependent and smaller-party MPs. It should be pointed out that
the global economic crisis and the discovery of oil had a huge
part to play in the closeness of the elections.
Leaders of the NPP, surprised at the result of the runoff
presidential election, filed a motion with the Accra Fast Track
High Court to prevent the Electoral Commission from declaring
the results as final until the claims of NDC electoral malprac-
tices in the Volta region could be investigated. This motion
failed and the NPP looked to continue its efforts despite public
calls for them to accept the results. Eventually President Ku-
four, the incumbent NPP President, released a statement calling
for everyone to accept the election results as declared by the
Electoral Commission and demonstrated that he was willing to
hand over power to the NDC candidate, Atta Mills, on January
7, 2009, as required by the Constitution.27
One would be mistaken to make the claim that Ghana’s
constitutional design was the only mediating factor that avoided
a widespread violent response to this shock (i.e. another turn-
over of power). In this case the decision (perhaps obtorto collo)
of incumbent Kufour to ask the electors of his party’s candidate
Akufo-Addo to concede defeat rather than persist in contesting
the validity of the elections contributed enormously to avoiding
the situation from degenerating and from a certain standpoint
was also an important sign of democratic maturity. Of course
there is, however a «sliding doors» question to be answered:
would the outcome have been so peaceful if the elections had
resulted in a divided government (or what the French would
term cohabitation)?

5. The Reasons for this Peaceful Transition

So why, despite a Constitution that was the result of a


compromise with the then dictator Jerry Rawlings and that is
characterised by a significant concentration of powers in the
hands of the President and strong territorial centralism, has

27
L. Whitfield, op. cit., pp. 624-625.
A CONSTITUTIONAL PARADOX? 377

Ghana become, as correspondent of the Financial Times, Wil-


liam Wallis, recently put it «one of only a handful of African
countries to experience two peaceful and constitutional trans-
fers»?28

5.1. The Constitutional Factors

Post-1992 Ghana does have a constitutional design with


many positive features.
First of all, the term limits. In 2000 and 2008 alternation in
government was possible because the incumbent presidents
could not stand for a third term. Again two «what if» questions
need to be posed: would Kufour have won in 2000 if he had
been campaigning against Rawlings, rather than Atta Mills?
And would the latter have been elected in 2008 if he had to
campaign against the opponent he had already lost against eight
years earlier? Whatever the answer to these questions there can
be no doubt that this limit has had the positive consequence that
terms of office are quite short and neither of the two main par-
ties is out of office for too long.
Second, Ghana’s presidential system has so far ensured an
ethno-regional representation in the cabinet and executive (re-
gardless of the ruling party’s electoral performance or support
in a given region) thus compensating for the distortions that
typically arise with a first-fast-the-post electoral system such as
the one used in Ghana to elect Parliament.
Third, constitutional guarantees are in place thus ensuring
the protection of media freedom and pluralism.
Fourth, overall Ghana has an independent court system
where judicial review works. This allows opposition parties an
alternative forum to challenge Government. This was clearly
the case of the 1992 presidential elections where the opposition
talked of a «Stolen Verdict» and consequently boycotted the
parliamentary elections. This meant that between 1993-1996 de
facto Ghana had a one-party system yet through successful con-
stitutional review the opposition was able to maintain extra-
parliamentary pressure and have an influence in national poli-

28
W. Wallis, Politics frustrates pace of change, in «Financial Times, Special Re-
port», 15th December 2011, p. 1.
378 JUSTIN FROSINI

tics, thus coming back into the game in 1996 and then winning
the elections in 2000.
Fifth, Ghana has an independent electoral commission that
according to many is to be considered a model in terms of elec-
toral management bodies in West Africa and further afield. It
should be noted, that the operational independence of the com-
mission is recognised despite the fact that the method of ap-
pointment of the members is not impartial. Moreover, in the af-
termath of the 1992 opposition boycott, in 1994 the commission
instituted the Inter-Party Advisory Committee (IPAC) in order
to improve the trust, confidence and working relationships be-
tween the Commission and registered political parties and to
enhance transparency in its operations. As the official website
of the Electoral Commission states:

IPAC provided an innovative mechanism for the Electoral


Commission to meet representatives of political parties as
well as donors that supported the electoral process. They
also discussed issues concerning election preparations.
Furthermore, IPAC discussed confidence building meas-
ures like the issue of photo identity cards, provision of
transparent ballot boxes and holding of presidential and
parliamentary elections on the same day to avoid the
Band-wagon Syndrome. IPAC also advocated the need to
involve the political parties in many stages of the political
process.29

5.2. The Non-Constitutional Factors

While as comparative constitutionalists our attention


should be given to the legal mechanisms in place, one cannot
ignore, however, that there are other factors that have contrib-
uted to this outcome. Indeed the following non-constitutional
design factors should be underlined.
First, Ghana has had a strong two-party tradition, with the
two sides almost evenly marche.30 Ghana’s political system is
not, however, frozen given the fact that the country is character-

29
http://www.ec.gov.gh/node/10.
30
One could argue that this should not be considered a «non-constitutional design
factor» given the fact that the two-party political system is undoubtedly upheld and
maintained thanks to the first-past-the-post electoral system that is adopted for
election of members of parliament.
A CONSTITUTIONAL PARADOX? 379

ised by fluid majorities and shifting electoral coalitions which


have certainly favoured alternation in government since 1992.
Furthermore, still with regard to Ghana’s political system, it has
been seen that there is the possibility of «life outside politics»
thus reducing the problem of «life-long political professional-
ism» that characterises many other countries not only in Africa.
Second, with regard to the demographic characteristics of
Ghana, it is important to note that there is no single ethnic ma-
jority. Of course there can be no doubt that the Akans are cul-
turally and linguistically the most dominant, but they are not
politically monolithic or self-contained therefore this contrib-
utes to the fact that in Ghana, unlike other countries in Africa
and beyond, there are no permanent winners and losers. More-
over, the last few presidential elections have been characterised
by North/South ticket pairing (Muslim/Christian).
Third, there has been an astute use of disinterested of «out-
sider» Chiefs to mediate protracted local conflicts outside their
own jurisdictions.
Fourth, Ghana has acquired a longstanding experience with
refugee and disaster management and therefore failures and dif-
ficulties of the past have led to the creation of new specialised
bodies such as the The Ghana Refugee Board31 and the National
Disaster Management Organisation (NADMO).32 In other
words lessons have been learnt and changes have been made to
the constitutional design itself.
Fifth, Ghanaians, especially the Akans, have a tradition of
choosing «flight» over «fight». Indeed, in the seventies and
eighties there was a middle/lower-middle class brain drain i.e.
what one might define a «private solution to public problems».
Sixth, in Ghana there appears to be «military regime ex-
haustion». In fact, today the majority of Ghanaians seem to
have an antipathy towards military intervention in other words
they believe that «the Armed Forces have had their day». This
is accompanied by the military’s own acceptance of civilian
control.
Finally, there is a general impression that the Ghanaians
like to be thought of as exceptional and peaceable, therefore
Ghanaian exceptionalism has become a sort of self-fulfilling
prophesy.
31
http://mint.gov.gh/index.php?option=com_content&task=view&id=32&Itemid=
43
32
http://www.nadmo.gov.gh/
380 JUSTIN FROSINI

6. A Look to the Future: Two Decades Later Time to


Amend the Constitution?

So what does the future hold for Ghana and can this West
African country be considered a model for other regions in Af-
rica? With regard to the second part of the question there is no
easy answer. Much ink has been spilt debating the pros and
cons of legal transplanting and therefore it would seem prefer-
able to refrain from inferring policy prescriptions for other Af-
rican countries.33 Just one example to highlight this problem:
«Ghana is one of the few African countries with a well estab-
lished independent National Election Commission»,34 but does
this imply that it should be transplanted elsewhere? Does the
independence and authoritativeness of the commission derive
from its «constitutional design» or does it depend on other fac-
tors? It has already been underlined that the selection of the
members of the commission is not impartial and yet, as Winrich
Kühne underlines, the commission Chairman Kwado Afari-
Gyan, «has become a very popular person in Ghana due to his
and the Commission’s role in successfully conducting a series
of elections after years of military rule and coups».35 The im-
pression is that context seems to play a fundamental role and
that, persisting with the medical metaphor, «transplanting» the
Ghana Election Commission elsewhere in Africa might (the
conditional here is mandatory) result in «rejection». Similar
considerations could be made with regard to other positive ele-
ments of Ghana constitutional design.
Regardless of whether Ghana can and/or ought to be con-
sidered a model for other countries in Africa, the question is
whether peace is durable in Ghanaian itself and whether the
country’s constitutional design will continue to play an impor-
tant mediating role.
It should be highlighted that there are calls from several
quarters to amend the Constitution. Indeed, with Constitutional
Instrument 2010 (C.I.) 64 a Constitution Review Commission
(CRC) was set up as a Commission of Inquiry to conduct a con-

33
Among the copious literature concerning legal transplanting see: A. Watson,
Legal Transplants, Scottish Academic Press, Edinburgh, 1974.
34
W. Kühne, The Role of Elections in Emerging Democracies and Post-Conflict
Countries. Key Issues, Lessons Learned and Dilemmas, Friedrich-Ebert-Stiftung,
Berlin, 2010, p. 6.
35
W. Kühne, op. cit., p. 6.
A CONSTITUTIONAL PARADOX? 381

sultative review of the operation of the 1992 Constitution. As


stated by the Commission itself: several levels of consultations
and activities had been undertaken to fulfill the first of the
three-prong mandate. These activities included consultations
with Ghanaians at the individual, Community, District, Re-
gional, Special Category and Diasporan levels to elicit their
opinions and concerns on the operation of the 1992 Constitu-
tion.36
Then in March 2011, a truly historic event took place. «For
the first time in Ghana’s history, a conference to review an op-
erational Constitution took place. Nearly three thousand Ghana-
ians from all strata of society met in Accra and deliberated on
the various submissions made during the Constitution Review
exercise».37 As this article goes to print the Final Report is
about to be submitted to President Atta Mills. The contents of
the report have been kept reserved in order, on one hand, to
avoid press speculation and, on the other, to prevent constitu-
tional reform from becoming a battleground for the two main
parties in the 2012 Presidential elections. Indeed many observ-
ers agree that amendments to the Constitution will not be ap-
proved before 2013.
Regardless of the Final Report, one can certainly affirm
that there are undoubtedly certain aspects of Ghana’s constitu-
tional design that could be ameliorated.
First and foremost, the powers of the President should be
reduced through a better functioning system of checks and bal-
ances. At present Ghana is characterised by a radical spoils sys-
tem and zero-sum majoritarianism. In the opinion of who is
writing, the majority system and the two-party set-up should not
be put aside, but the system needs greater separation of powers
both horizontally and vertically.
With regard to horizontal separation of powers, one reform
might be to have an all party parliamentary committee appoint
the members of the Election Commission rather than the Presi-
dent and the same could be said for many other important insti-
tutional appointments.
With regard to vertical separation of powers and as under-
lined previously, from an institutional standpoint, Ghana is ter-
ritorially extremely centralised (testimony of this is the fact that

36
See http://www.crc.gov.gh/?q=page/national-constitution-review-conference
37
See http://www.crc.gov.gh/?q=page/national-constitution-review-conference
382 JUSTIN FROSINI

the President appoints all(!) the local mayors and a third of the
members of the local councils). Indeed, decentralisation and lo-
cal government reform (for example with the introduction of
elected mayors) would almost certainly put an end to the exces-
sive concentration of powers of the President and his men, but
would probably also attenuate the «winner takes all, the loser
can go to hell» mentality that accompanies presidential elec-
tions. Indeed, with devolution of powers the party in opposition
to the central government in Accra would still be the ruling
party in other areas of the country at the devolved level, thus
constantly participating in the political game rather anxiously
awaiting another presidential election to claim «revenge».
A particular issue that should also be addressed is that of
having clear rules put in place in order to deal with the prospect
of divided government: although this has not yet occurred, as
seen above, the country went very close to this prospect in 2008
and many observers believe the same may happen in the elec-
tions at the end of this year.
Last, but not least, the problem of malapportionment in
drawing of constituency boundaries (with partisan dimensions)
needs to be addressed as this is beginning to fuel electoral
grievance and could be considered a prospective future shock.
Here the United Kingdom, Ghana’s former colonial ruler, might
be a source of inspiration following the approval of the Parlia-
mentary Voting System and Constituencies Act 2011 (PVSCA),
which will required the constituency boundaries of the House of
Commons to be redrawn so that the number of electors is spread
more evenly across parliamentary seats.38
In conclusion, Ghana undoubtedly represents an interesting
case study with regard to democratic transitions. Having said
this there is the possibility that this successful transition could
go «off track». The 2012 presidential and parliamentary elec-
tions look set to be fiercely fought once again and there is the
strong likelihood of another result that is «too close to call»
with the consequential risk that the widespread violence that did
not break out in 2008 will do so in November, however, who
writes is optimistic that this will not occur.
Finally Ghana must make every effort to ensure that the
discovery of offshore oil and gas does not prove to be a curse

38
Under the new British rules, the average electorate per constituency in the UK
has been set at 76,641, and each constituency must be within 5% of that quota.
A CONSTITUTIONAL PARADOX? 383

but, on the contrary a well-deserved blessing, for a people that


has made enormous efforts to consolidate its democratic system
and appears «eager to remain master of its own destiny»39.

Abstract

Extrapolated from a case study on Ghana for a much larger research


project on Constitutional Design and Conflict Management in Africa,
this article will first provide a short history of Ghana since 1957 (i.e.
when the Gold Coast became the first country in Africa to obtain in-
dependence) then going on to outline the main features of the 1992
Constitution. The article will proceed by addressing the three most
important «constitutional moments» of the last two decades i.e. the
presidential and parliamentary elections of 1992, 2000 and 2008. The
final part of this contribution will be devoted to highlighting the con-
stitutional and non-constitutional factors that the author believes have
contributed to the success of Ghana’s democratic transition and un-
derlining what parts of the Constitution ought to be amended in the
light of the work of Ghana’s Constitution Review Commission.

Estrapolato da uno studio ben più ampio inerente al Constitutional De-


sign and Conflict Management in Africa, questo articolo inizia for-
nendo una breve storia del Ghana a partire dal 1957 (vale a dire l’anno
in cui la Costa d’Oro diventa il primo Paese africano ad ottenere
l’indipendenza) per poi delineare le caratteristiche principali della Co-
stituzione ghanese del 1992. Lo scritto prosegue descrivendo i tre
principali «momenti costituzionali» degli ultimi due decenni ossia le
elezioni presidenziali e parlamentari del 1992, 2000 e 2008. La parte
finale del contributo si focalizza sui fattori costituzionali ed extra co-
stituzionali che l’autore ritiene abbiano contribuito al successo della
transizione democratica in Ghana indicando altresì le parti della Carta
costituzionale che dovrebbero essere modificate alla luce dei lavori
della Constitution Review Commission ghanese.

39
W. Wallis, Nation eager to remain master of its own destiny, in «Financial
Times, Special Report», 15th December 2011, p. 4.